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Experts and civil society organisations fear that hundreds of people convicted under the Sexual Offences Act will try to get their sentences quashed after a landmark court ruling exposed a loophole in the legislation that might allow sex offenders to walk free.
According to a recent high court sexual assault judgment, perpetrators arrested for certain offences in the act cannot be formally charged because legislators omitted to prescribe sentences for the offences.
The loophole covers 29 sections of the legislation in which offenders cannot be charged for offences including sexual assault, compelled sexual assault, consensual sexual acts with children, sexual exploitation and sexual grooming of children, as well as sexual offences against mentally disabled people.
Parliament’s justice committee will meet on Tuesday to plug the potentially calamitous flaws.
Alarmingly, legal observers point out that offenders who had already been convicted could also apply to have their convictions set aside.
The judgment, handed down by the full bench of the Western Cape High Court, has been described as a “legal crisis” that needed to be resolved immediately.
The act, which came into effect in December 2007, does not affect rape cases as this is covered by the Criminal Law Amendment Act.
“This is so shocking. The logic of it is completely flawed,” said Kubi Rama, chief operating officer of advocacy group, Gender Links.
“Because there is no sentence prescribed in the act does not mean that a crime was not committed. It is a pure technicality,” said Rama.
“The other issue this raises is, will this open the door to offenders who have already being convicted under the act who will now believe they can go back and appeal so that their charges should be quashed?”
She said that the National Prosecuting Authority (NPA) should close the loophole as a “matter of urgency”.
“How is it possible that a court will make such a ruling? One has to apply logic and common sense to some of these things. I really hope the NPA takes this further as a matter of urgency and corrects this error that creates this legal crisis,” said Rama. “It is incumbent on the NPA to deal with it expediently.”
Spokesman for the Department of Justice, Tlali Tlali, said the matter was receiving “serious and urgent attention”.
“We will soon be able to indicate the route we will take in attending to it,” he said.
Parliament’s justice committee chairman, Lluwellyn Landers (ANC), said that when it met today, it would co-ordinate a response to the judgment with the Department of Justice – the sponsor of the law.
This could comprise an appeal to the Supreme Court of Appeal or the Constitutional Court – which would effectively put the high court judgment on hold, as other courts would be hesitant to rule on similar cases until the matter had been resolved one way or another, a member of the justice committee said.
This would also prevent those convicted or charged with the affected sexual crimes from hopping on the bandwagon and using the court judgment as a get-out-of-jail card.
“I think it’s very much an issue of the law being an ass, because, quite clearly, even if there was an oversight (on our part), the judgment still comes to the bizarre conclusion that, because the legislature did not specify penalties, it did not intend for the crimes to be punished. This is completely illogical”, the MP said.
The National Sexual Offences Working Group, comprising NGOs, will hold an emergency meeting about the issue, Childline SA’s manager of training and advocacy, Joan van Niekerk, said.
“We are very concerned. This is an absolutely disaster,” said van Niekerk.
“It is time to sort this act out once and for all. There are sections that are flawed,” she said, adding that the group would seek the entire reform of the Sexual Offences Act.
“We want an act that works.”
African Christian Democratic Party chairwoman, Jo-Ann Downs, was aghast at what she called the government’s “blatant failure to protect women and children from rape and|violent abuse”.
“This is a very serious omission that has far-reaching implications as sexual offenders may now be able to apply to have their charges quashed, or even worse, their convictions overturned,” Downs said.
The DA described the judgment as a “devastating blow” to the fight against such crimes.